HREOC Report No. 16

Report of an inquiry into a complaint by Mr Hocine Kaci of acts or practices inconsistent with or contrary to human rights arising from immigration detention

HREOC Report No. 16

CONTENTS

1. Introduction

2. The Commission's jurisdiction

3. Outline of complaint

4. The inquiry process

5. Relevant legal framework

6. Matters in dispute

7. Findings

8. Recommendations

9. Actions taken by the respondent as a result of the findings and recommendations

Appendix (A) Functions of the Human Rights and Equal Opportunity Commission

1. Introduction

This report to the Attorney-General concerns an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") into a complaint made by Mr Hocine Kaci on 18 May 2000. The complaint is against the Commonwealth of Australia (Department of Immigration, Multicultural and Indigenous Affairs) ("DIMIA") under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act"). The complaint was made pursuant to section 20(1)(b) of the HREOC Act, which provides for a complaint to be made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right.

2. The Commission's jurisdiction

The Commission's functions in relation to the investigation and conciliation of complaints of human rights breaches against the Commonwealth of Australia and its functions in relation to reporting on complaints with substance that have not been resolved through the process of conciliation are outlined in Appendix A to this report.

3. Outline of complaint

In summary, Mr Kaci arrived in Australia on 14 September 1998 without a valid visa. In accordance with the Migration Act 1958, he was detained in the Perth Immigration Detention Centre ("PIDC") and Port Hedland Immigration Reception and Processing Centre ("PHIRPC"). As a result of alleged unacceptable behaviour, he was transferred to the CW Campbell Remand Centre ("CWCRC") on 29 February 2000. Mr Kaci was removed from Australia on 30 August 2000. Mr Kaci alleged that the conditions in which he was detained at CWCRC were contrary to the provisions of the International Covenant on Civil and Political Rights ("ICCPR"). Mr Kaci made further allegations about breaches of the ICCPR by DIMIA. I found that the acts or practices complained of in those allegations did not amount to breaches of the ICCPR.

DIMIA denies that the circumstances of Mr Kaci's detention gave rise to any breach of Mr Kaci's human rights.

4. The inquiry process

I investigated this complaint pursuant to section 11(1)(f) of the HREOC Act. While conciliation was attempted, an agreement was not reached. I therefore formed the view that this matter was not amenable to conciliation.

I provided a preliminary report to the parties dated 3 May 2001 which outlined my preliminary findings in relation to the complaint.

Following the Preliminary and Further Preliminary Findings, I made directions for the provision of further evidence and submissions by the parties. By this stage, Mr Kaci had been deported from the country and his whereabouts were unknown. Pursuant to section and 27 of the HREOC Act, I invited DIMIA to make further submissions orally and in writing. DIMIA filed written submissions dated 6 June and 27 November 2001. No further contact was had with Mr Kaci.

On 7 February 2002, I issued a notice of my findings and recommendations in relation to the complaint under section 29(2) of the HREOC Act.

5. Relevant legal framework

(i) The HREOC Act

Section 20(1)(b) of the HREOC Act provides for a complaint to be made in writing alleging that an act or practice is inconsistent with or contrary to any human right.

Where a complaint is received by the Commission, it has the function, pursuant to Section 11(1)(f) of the HREOC Act, to inquire into any act or practice that may be inconsistent with or contrary to human rights.

(ii) Migration Act

The Migration Act 1958 provides that all unlawful non-citizens must remain in detention unless they are granted a valid visa or leave the country. In particular, section 5(1) of the Migration Act 1958 allows for the detention of immigration detainees to occur within state prisons.

(iii) ICCPR

The ICCPR entered into force for Australia on 13 November 1980. The ICCPR applies to all persons within the territory of a State Party regardless of their nationality or status as a non?citizen. Thus, the ICCPR applies to all asylum seekers, refugees and persons within Australia's jurisdiction whose applications for refugee protection have been rejected.
The only article of the ICCPR that I have found to be breached by DIMIA is article 10(2)(a). Article 10(2)(a) of the ICCPR provides:

2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;"

(iv) Migration Series Instruction 244: Transfer of Detainees to State Prisons ("MSI-244")

The Migration Act 1958 is silent on the circumstances which would justify the transfer of an immigration detainee from an Immigration Detention Centre ("IDC") to a State prison. The matter is instead regulated by Departmental policy as set out in MSI-244. MSI-244 governs the circumstances and procedures in which an immigration detainee may be transferred to a State prison and detained therein.

Section 2.1 of MSI-244 provides:

"Detention of immigration detainees within prisons occurs as a last resort. In this restricted context it can occur for a number of reasons, which include:

Behavioural Concerns

  • While being held at an IDC a person's behaviour is considered to be unacceptable for the low security IDC environment, because of:
    • the risk to other detainees;
    • violent behaviour and/or unlawful behaviour, the inability of management and the detainee to resolve the unacceptable behaviour; or
    • the risk of absconding from the lawful custody; or
  • at the time of being taken into immigration detention a person is assessed as being unsuitable to mix with other detainees at an IDC…."

Section 7.1 of MSI-244 sets out a procedure for review of the place of detention.

This section requires that an initial review of the detention be conducted by DIMIA within a short period of time of the transfer taking place. Section 7.3 of MSI-244 requires further reviews to take place at least at monthly intervals. In particular, Sections 7.3.2 and 7.3.3 provide:

"7.3.2. Where it is determined from reports received from custodial authorities that the detainee's behaviour or condition has modified to an acceptable degree to warrant the return to an IDC, transfer of custody should be undertaken.

7.3.3. Information received from custodial officers or institutional welfare/social workers should also be used to determine when a return to an IDC is appropriate…"

6. Matters in dispute

  • Was there a breach of Article 10(2)(a) of the ICCPR as a result of the conditions in which Mr Kaci was held in CWCRC?

A summary of DIMIA's position on this issue is as follows:

Conditions of detention in CWCRC

In his complaint to the Commission, Mr Kaci refers to his situation in the remand centre as "not a good one" and states that he was "often the target of violent prisoners". The Review of Detention Report of 10 May 2000 refers to Mr Kaci telling the review officer that he had been "picked on by several Aboriginal and British inmates" and that "he had been moved from unit 7 to 10 to 6 because of inmates seeking to fight with him". DIMIA also provided an undated minute from the Assistant Superintendent of the remand centre which states that Mr Kaci had reported feeling "uneasy" in his unit and had asked for a transfer to another unit to be with a fellow detainee.

DIMIA does not accept that Mr Kaci's rights were breached under Article 10(2)(a) of the ICCPR which provides that detainees should be segregated from convicted persons except "in exceptional circumstances" and subject to separate treatment. Although DIMIA concedes that Mr Kaci was not segregated from convicted prisoners during his detention in CWCRC, DIMIA considers there were exceptional circumstances that led to Mr Kaci being detained with convicted prisoners. In particular, Mr Kaci was moved from the self-care facility into the general population of the CWCRC because his behaviour was not appropriate for the lower level security of the self-care facilities. According to DIMIA, while the prison authority is responsible for the security classification of a detainee held in prison DIMIA officers are required to provide sufficient background information to ensure that the prison authority appropriately assesses immigration detainees and places them in suitable accommodation in the correctional facility. In any event, DIMIA contends that it cannot be found to have breached a provision of the ICCPR against which Australia has maintained a reservation, as stated in a letter dated 6 June 2001:

DIMA does not accept that Mr Kaci's rights were breached under Article 10(2)(a), which provides that detainees should be segregated from convicted persons except "in exceptional circumstances". These were clearly exceptional circumstances.

But in any event, DIMA cannot be found to have breached a provision of the ICCPR against which Australia has maintained a reservation. Australia, in its instrument of ratification of the ICCPR, made the following reservation to paragraph 2 of Article 10:

"In relation to paragraph 2 (a) the principle of segregation is accepted as an objective to be achieved progressively. In relation to paragraph 2 (b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned".

In Australia's reports to the United Nations Human Rights Committee, the Commonwealth has set out clearly the reasons for this reservation. These include the prohibitive cost of implementation of separation, in some instances, in the Australian context and that in some cases segregation might in fact entail solitary confinement or living in conditions less amenable than those of the general prison population.

DIMA cannot accept that Mr Kaci's rights were breached under Article 10(2)(a).

7. Findings

Where a complaint is received by the Commission, it is required by section 11(1)(f) of the HREOC Act to inquire into:

  • any act or practice
  • that may be inconsistent with or contrary to any human right.

7.1 Was there an act or practice?

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth. These words have their ordinary meaning: that is, the noun "act" denotes a thing done and the noun "practice" denotes a course of repeated conduct.

An "act" or "practice" invokes the human rights complaints jurisdiction of the Commission where the relevant act or practice is within the discretion of the Commonwealth, its officer or agents. If the automatic operation of a law requires that the act or practice be done by or on behalf of the Commonwealth, its officers or its agents, and there is no discretion involved, these actions and practices will be outside the scope of the Commission's human rights complaints jurisdiction.

The Migration Act provides that all "unlawful non-citizens" must be held in immigration detention unless they are granted a valid visa or leave the country. The Commission, in its report, Those who've come across the seas: Detention of unauthorised arrivals, has found that these provisions in the Migration Act, which establish a system of mandatory detention, contravene Australia's human rights obligations under Article 9 of the ICCPR and Article 37 of the Convention on the Rights of the Child. Consequently, the Commission has recommended that the provisions in the Migration Act in relation to mandatory detention be amended. However, while this law remains in place a person's detention under the Migration Act occurs by reason of the automatic operation of the law and does not constitute an act or practice into which the Commission could inquire.

The Migration Act also provides that an unlawful non-citizen may be held in immigration detention in an IDC or a State prison. Despite the vastly different nature of detention in an IDC as compared to detention within a State prison, the Migration Act provides no guidance as to when a detainee may be held in a State prison rather than an IDC. This issue is instead regulated by Governmental policy and procedure. As a matter of Government policy, immigration detainees are held in purpose built IDC's and detention of these detainees in State prisons occurs as a last resort and only in clearly defined circumstances. A decision to transfer a person from an IDC to a State prison and a decision to maintain a person's detention in the State prison is a policy decision which involves the exercise of discretion by DIMIA and its officers. Such decisions are therefore "acts" done by the Commonwealth, as defined in Section 3 of the HREOC Act, and within the Commission's complaints jurisdiction.

7.2 Were the acts inconsistent with and/or contrary to the human rights recognised in the ICCPR ?

Conditions of detention in CWCRC

The issue I have to determine is this: was there a breach of Article 10(2)(a) of the ICCPR as a result of the conditions in which Mr Kaci was held in CWCRC ?

Article 10(2)(a) applies to persons in all forms of detention. Article 10(2)(a) imposes two requirements on a State Party. The first is that, save in exceptional circumstances, an accused person shall be segregated from convicted persons. Australia has a reservation that states:

"In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively."

Article 10(2)(a) of the ICCPR also obliges Australia to ensure that a person in detention is subject to separate treatment appropriate to his or her status as an unconvicted person. This right is not affected by the reservation to Article 10(2)(a) as that reservation is limited in its terms to the principle of segregation. As is the case in domestic law, reservations to the ICCPR (being derogations from fundamental human rights) are construed narrowly.

The UN Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) and the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment provide guidance as to nature of the separate treatment Australia is obliged to accord to unconvicted persons under Article 10(2)(a). Although these instruments are not binding on Australia, they have been recognised by the UNHRC as relevant UN standards applicable to the treatment of detained persons.

Rule 95 of the Standard Minimum Rules provides that persons arrested or imprisoned without charge shall be given the same protection as that given to arrested or remanded prisoners under Part II, section C. Part II, section C of the Standard Minimum Rules provides:

"C. PRISONERS UNDER ARREST OR AWAITING TRIAL

84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as "untried prisoners,' hereinafter in these rules.

(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.

(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.

85. (1) Untried prisoners shall be kept separate from convicted prisoners.

(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.

86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.

87. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.

88. ( I ) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.

(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.

89. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.

90. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.

91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.

92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.

93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official."

DIMIA accepts that Mr Kaci was not segregated from convicted prisoners during his detention in CWCRC. Thus during this period, Mr Kaci was treated in exactly the same manner as convicted prisoners and did not enjoy the entitlements detailed above in Part II, Section C of the Standard Minimum Rules. In particular, it is evident that Mr Kaci did not benefit from a "special regime" as required by the
Standard Minimum Rules. Therefore, I find that Article 10(2)(a) of the ICCPR has been breached.

8. Recommendations

Section 29(2) of the HREOC Act requires that, where I conclude that an act or practice is inconsistent with or contrary to any human right, I should make findings to that effect and recommendations for preventing a repetition of the act or a continuation of the practice.

I recommend that the Commonwealth take immediate steps to comply with its obligations under article 10(2)(a) of the ICCPR. DIMIA should ensure that immigration detainees held in State prisons are subject to separate treatment appropriate to their status as unconvicted persons. At a minimum the detainee should be entitled, in accordance with Part II, Section C of the Standard Minimum Rules to:

  • sleep singlely in separate sleeping quarters;
  • within the limits compatible with the good order of the State prison and if the detainee wishes, have his/her food procured at his/her own expense from the outside, either through the administration or through their family or friends;
  • wear his/her own clothing if it is clean and suitable;
  • if the detainee wears prison dress, it shall be different from that supplied to convicted prisoners;
  • work, but shall not be required to work. If the detainee chooses to work, he/she shall be paid for it;
  • procure at his/her own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution;
  • be visited and treated by his/her own doctor or dentist if there is reasonable ground for his application and s/he is able to pay any expenses incurred;
  • all reasonable facilities for communicating with his/her family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution; and
  • receive visits from his/her legal adviser with a view to his/her defence and to prepare and hand to him/her confidential instructions. For these purposes, he/she shall if he/she so desires be supplied with writing material. Interviews between the prisoner and his/her legal adviser may be within sight but not within the hearing of a police or institution official.

9. Actions taken by the respondent as a result of the findings and recommendations

Under section 29(2)(e) of the HREOC Act, the Commission is required to state in its report to the Attorney-General whether the respondent has taken or is taking any action as a result of its findings and recommendations.

On 7 February 2002, the Commission wrote to DIMIA to seek its advice as to what action it had taken or proposed to take as a result of the findings and recommendations. In a letter to the Commission dated 6 March 2002, Mr Andrew Metcalfe, on behalf of DIMIA, provided DIMIA's comments in relation to the Notice. Those comments, in full, were as follows:

I am writing in response to your Notice of an Inquiry under the HREOC Act, dated 7 February 2002, into a complaint by Mr Hocine Kaci. I appreciate the opportunity to comment on your findings in this matter.

Findings
…….
The Department welcomes your findings that the transfer to and continued detention of Mr Kaci in CW Campbell Remand Centre (CWCRC) did not breach Article 9 and Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR).

The Department does not, however, agree with your finding that the conditions in which Mr Kaci was held in CWCRC occasioned a breach of Article 10(2)(a).

You state at page 13 of your Notice of Findings that:

"DIMA accepts that Mr Kaci was not segregated from convicted prisoners during his detention in CWRC. Thus during this period, Mr Kaci was treated in exactly the same manner as convicted prisoners and did not enjoy the entitlements detailed above in Part ll, Section C of the Standard Minimum Rules. In particular, it is evident that Mr Kaci did not benefit from a "special regime" as required by these Rules."

It is on this basis that you find that Article 10(2)(a) of the ICCPR has been breached.

The Department submits that although the Standard Minimum Rules may be taken into account in determining the standards for humane conditions of detention, the Standard Minimum Rules do not form a code, nor are States Parties required to adhere to the Standard Minimum Rules in order to comply with the ICCPR.

Australia is not bound under international law to comply with the Standard Minimum Rules, a fact that you acknowledge on page 12 of your findings. As such, the Department submits that it is not reasonable to find a breach of Article 10(2)(a) on the basis of perceived non-compliance with a non-binding instrument.

Further, while the Department does accept that Mr Kaci was not segregated from convicted prisoners during his detention in CWCRC, it does not accept that this necessarily leads to a conclusion that Mr Kaci was treated in exactly the same manner as convicted prisoners.

In Western Australia, immigration detainees in state correctional facilities are held under the same conditions as a prisoner on remand. These conditions differ from those that apply to sentenced prisoners.

As the Department stated in its correspondence to the Commission dated 6 October 2000 and 10 January 2001, CWCRC was the only adult remand centre in the Perth metropolitan area at the time of Mr Kaci's transfer. Due to capacity issues faced by the Ministry of Justice in WA, CWCRC housed both convicted and unconvicted prisoners.

As has been stated in previous submissions, Mr Kaci was originally detained in a self care unit within CWCRC. The unit provided selected prisoners the opportunity to access limited cooking facilities and was utilised as a multi-cultural unit. As has been previously stated, Mr Kaci attempted to assault a corrections officer and was moved from the self care facility as a result. Further, during an interview with his detention review officer on 7 April 2000 (provided to the Commission on 6 October 2000), Mr Kaci stated that he was being treated reasonably and commented that he felt like he was in a hotel not a prison.

Recommendations

You have recommended that:

The Department should insure that immigration detainees held in state prisons are subject to separate treatment appropriate to their status as unconvicted persons.

The Department submits that there is no direct authority on whether Article 10(2)(a) applies to administrative detainees held in a state correctional facility. The distinction between convicted and unconvicted persons in Article 10 arises from the right of such persons to the enjoyment of the presumption of innocence in criminal proceedings (Article 14(2)). Consequently, the language of Article 10(2)(a) is directed to 'accused' persons.

Nevertheless the Department is endeavouring to ensure that, where practicable, detainees held in state correctional facilities are subject to treatment appropriate to their status as unconvicted persons. However, as has been stated in previous submissions, decisions on the security classification of detainees in state correctional facilities are ultimately determined by the state correctional authority. Departmental officers are required to provide sufficient case background information to ensure that the correctional authority appropriately assesses immigration detainees and places them in suitable accommodation in the correctional facility.

Negotiations are continuing with a number of State correctional authorities on Memoranda of Understanding with respect to the detention of immigration detainees in state correctional facilities. The conditions under which detainees are held in state facilities necessarily form part of the negotiations.

You have also recommended that detainees should be entitled to be treated in accordance with Part II Section C of the UN Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules).

As has been stated, Australia is not bound under international law to comply with the Standard Minimum Rules, a fact that you acknowledge on page 12 of your findings. Nevertheless, the treatment of detainees in state correctional facilities in most instances complies with Part II Section C of the Standard Minimum Rules.

For example, as has been indicated above, conditions for immigration detainees in state correctional facilities in Western Australia differ from those that apply to sentenced prisoners.

In Victoria, it is normal for detainees held in state correctional facilities to be detained in accordance with the principles outlined in your recommendations. Detainees in Victorian facilities:

  • are usually housed in a single cell, however, some detainees prefer to share sleeping quarters and this option is available.
  • can buy and prepare their own food if they wish to do so.
  • are free to wear their own clothes, however, all inmates are issued with t-shirts, track suit pants and shoes -there is no prison uniform.
  • are paid if they choose to undertake a work like activity program.
  • can be visited and treated by their own doctor or dentist.
  • can arrange newspaper and magazine subscriptions, buy books and obtain books from the library. They can also buy newspapers, magazines, writing materials, envelopes, stamps, telephone cards and food from the canteen.
  • can make telephone calls from their unit but they cannot receive telephone calls in their unit. They are also allowed reasonable visits from friends and family.
  • are provided with facilitated visits from their legal adviser. These visits are private.

In New South Wales, it is normal for immigration detainees to be classified as civil inmates. Generally speaking, civil inmates are treated in much the same way as unconvicted inmates, except for some additional privileges.

In Queensland, detainees are held in a separate wing of the Arthur Gorrie Correctional Centre and, as such, are held separately from both convicted and unconvicted prisoners.

Thank you for providing the Department with the opportunity to comment on your report.

Dated at Sydney this


Professor Alice Tay
President

Appendix A

Functions of the Human Rights and Equal Opportunity Commission

The Commission has specific legislative functions and responsibilities for the protection and promotion of human rights under the HREOC Act. Part II Divisions 2 and 3 of the HREOC Act confer functions on the Commission in relation to human rights. In particular, section 11(1)(f) of the HREOC Act empowers the Commission to inquire into acts or practices of the Commonwealth that may be inconsistent with or contrary to the rights set out in the human rights instruments scheduled to or declared under the HREOC Act.

Section 11(1)(f) of the HREOC Act states:

(1) The functions of the Commission are:

…

(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

(i) where the Commission considers it appropriate to do so?to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement?to report to the Minister in relation to the inquiry.

Section 3 of the HREOC Act defines an "act" or "practice" as including an act or practice done by or on behalf of the Commonwealth or an authority of the Commonwealth.

The Commission performs the functions referred to in section 11(1)(f) of the HREOC Act upon the Attorney?General's request, when a complaint is made in writing or when the Commission regards it desirable to do so (section 20(1) of the HREOC Act).

In addition, the Commission is obliged to perform all of its functions in accordance with the principles set out in section 10A of the HREOC Act, namely with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights.

The Commission attempts to resolve complaints under the provisions of the HREOC Act through the process of conciliation. Where conciliation is not successful or not appropriate and the Commission is of the opinion that an act or practice constitutes a breach of human rights, the Commission shall not furnish a report to the Attorney?General until it has given the respondent to the complaint an opportunity to make written and/or oral submissions in relation to the complaint (section 27 of the HREOC Act).

If, after the inquiry, the Commission finds a breach of human rights, it must serve a notice on the person doing the act or engaging in the practice setting out the findings and the reasons for those findings (section 29(2)(a) of the HREOC Act). The Commission may make recommendations for preventing a repetition of the act or practice, the payment of compensation or any other action or remedy to reduce the loss or damage suffered as a result of the breach of a person's human rights (sections 29(2)(b) and (c) of the HREOC Act).

If the Commission finds a breach of human rights and it furnishes a report on the matter to the Attorney?General, the Commission is to include in the report particulars of any recommendations made in the notice and details of any actions that the person is taking as a result of the findings and recommendations of the Commission (sections 29(2)(d) and (e) of the HREOC Act). The Attorney-General must table the report in both Houses of Federal Parliament within 15 sitting days in accordance with section 46 of the HREOC Act.

It should be noted that the Commission has a discretion to cease inquiry into an act or practice in certain circumstances (section 20(2) of the HREOC Act), including where the subject matter of the complaint has already been adequately dealt with by the Commission (section 20(2)(c)(v) of the HREOC Act).

Last updated 27 June 2002.